Jury Trials

[Judge Thomas]

Let me inject a controversial discussion. Should we ban jury trials?
King John did this a thousand years ago, and it resulted in a meeting
at Runneymeade that created the Magna Carta. The threat of abolution
of jury trials was also one of the bases for the Declaration of
Independence, but do we still trust juries? I think many of you know
my thoughts on this, but I would be interested in hearing yours.

Neil Thomas

[Arnold Cohen]

I would love it.
How do we get that done!

Arnie

Remember- Sign all Verbal orders in PeriBirth.
Also-Wash your hands

Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993
coh...@einstein.edu

This message is intended for the use of the person or entity to which it is addressed and may contain information that is privileged and confidential, the disclosure of which is governed by applicable law. If you are not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any disclosure, copying, or distribution of this information is strictly prohibited. If you have received this message by error, please notify the sender immediately to arrange for return or destruction of these documents.

[Judge Thomas]

Why?

On Apr 13, 10:21 am, "Arnold Cohen" <Cohe...@einstein.edu> wrote:
> I would love it.
> How do we get that done!
>
> Arnie
>
> Remember- Sign all Verbal orders in PeriBirth.
> Also-Wash your hands
>
> Arnold W. Cohen, MD
> Chairman
> Department of Ob/Gyn
> Albert Einstein Medical Center
> 215-456-6993

> cohe...@einstein.edu

[Judge Thomas]

Rather than being so flip in my response to Arnie, let me amplify.
Does anyone remember the reason for the inclusion of constitutional
protection for jury trials in our federal and state constitutions?
Would you feel comfortable in being a defendant in a criminal
proceeding where you did not have a right to trial by jury? On the
civil side, what other method of dispute resolution is preferable?
Just food for thought and your discussion.

Neil Thomas

[Arnold Cohen]

Specialty courts with knowlegable judges and experts is where I think we need to be.
Arnie
-----Original Message-----
From: Judge Thomas <ne...@hamiltontn.gov>
To: (FACT), Fellowship for Accurate Courtroom Testimony <fellowship-for-accura...@googlegroups.com>

Sent: 4/13/2011 11:21:20 AM
Subject: Re: Jury Trials

Neil Thomas

--
You received this message because you are subscribed to the Google Groups "Fellowship for Accurate Courtroom Testimony (FACT)" group.
To post to this group, send email to fellowship-for-accura...@googlegroups.com.
To unsubscribe from this group, send email to fellowship-for-accurate-cou...@googlegroups.com.
For more options, visit this group at http://groups.google.com/group/fellowship-for-accurate-courtroom-testimony?hl=en.

[BPCnonpr...@aol.com]

So work on that , not on the abolition of jury trials. 

[dpriver]

It is intriguing that we have begun a discussion about the value, or
lack thereof, of jury trials. Famed Hollywood director Sidney Lumet,
best known for the riveting drama "12 Angry Men", died this week. When
we ponder whether or not "trial by jury" should continue to be such a
sacred cow, one must consider what would have happened to the innocent
defendant in that film if Henry Fonda were not on that jury. Perhaps
it is indeed time think outside the "jury box".
David

> > Neil Thomas- Hide quoted text -
>
> - Show quoted text -

[Arnold Cohen]

My sense though is that the facts of medicine and clinical care are outside of the ability of a "lay jury " to decide.Medicine is complex and certainly through the retrospectoscope, the complexity seems to melt away.
Case example
34 y.o. at term comes in with "chest complaints". Nothing characteristic of anything. Had a long hx of chest pain that was worked up with nl echo and stress test. Resident orders EKG. It is read by internist as normal. Pain persists over night, cardiologist comes in, he doesn't think pain is consistent with cardiac etiology but orders another EKG and Troponin. EKG is abnl. Troponin is high. Now we know she is having an MI.
In retrospect, resident should have ordered troponin and she would have been diagnosed 15 hours earlier. Resident is being sued because she missed the 1/20,000 who have an MI during pregnancy.

Clear as can be now.
Jury will say how could she have missed it.
We all know that if we did a full workup on everyone with chest pain we would inundate the system but in this case, it obviously should have been done.
Is this malpractice? NO
Will a lay jury think it is? ?????????

We need experts evaluating the cases as if they are there before you know the outcome.

Arnie

Remember- Sign all Verbal orders in PeriBirth.
Also-Wash your hands

Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993

coh...@einstein.edu

[John Schedler]

The problem isn't the jury, it's what evidence they are given & how
they are instructed. You science-types think trials are about the
truth -- you're wrong. Trials are about resolutions. To paraphrase
Churchill, if the truth emerges in a trial, it was an accident.

Problem #1: Hindsight bias. Dr. Cohen has a poignant story; so do
lawyers. The fact is, a bad outcome will always look more likely in
hindsight & there is ample science to show that. Plaintiffs' lawyers
exploit that. Judges are just as prey to this problem as juries, so
eliminating juries will not help. (By the way, I personally feel Dr
Cohen's pain. As a firefighter/EMT I responded on a call with just
that problem. I did not see the MI & took the pt to the hosp code
yellow. I caught hell 2 days later).

Problem #2: Juries instructed to do what feels good. Telling a jury
they can give a sympathetic plaintiff whatever they think feels good
is silly.

There are others, but it's not the jury itself. The fact is, the
general wisdom of the defense bar is that juries are usually much
more sensible than judges. That is my Dad's judgement after 38 years
trying cases & I agree after another 33 years years.

John Schedler

As Arnold Cohen noted,

[Arnold Cohen]

I would not question any dad's 38 years of experience but if science and truth don't matter, let's just have bad outcome payments an do away with thr blame game
Arnie
-----Original Message-----
From: John Schedler <jsch...@gmail.com>
To: <fellowship-for-accura...@googlegroups.com>

Sent: 4/13/2011 11:34:14 PM
Subject: Re: Jury Trials

[Judge Thomas]

Further to my e-mail to all of you of yesterday, I would like to open
a discussion on the use of jury trials focusing on the two questions I
posed in my e-mail of yesterday. I would suggest that we start with
the second question and separate it into two questions. Is there a
feasible alternative to dispute resolution other than jury trials? If
not, should there be a limitation imposed on juries such as caps on
non-economic damages (affectionately known as "tort reform")? In
answering the second question, we should bear in mind that trial
judges have the right to set aside a jury verdict if he or she thinks
it is excessive with a right of review of that decision in the
appellate courts. I would like to share our discussion with the
Center for the Study of the President and Congress with whom I have
discussed this issue and if you do not want your response shared with
the Center, please let me know.

Neil Thomas

On Apr 13, 10:19 am, Judge Thomas <ne...@hamiltontn.gov> wrote:

[Judge Thomas]

In response to John's e-mail of Wednesday regarding sympathetic
plaintiffs, let me recount a trial over which I presided about 18
months ago. The plaintiff was probably the most sympathetic plaintiff
I have had in a mesothelioma case. The issue was whether the employer
knew as much about the ill effects of asbestos as the distributor.
The jury came back three times with questions about that portion of my
charge and when they finally reported as I was reading their verdict,
I looked up and three of the jurors were crying. Do juries work hard
to achieve the right result? You bet.

Neil Thomas

> >cohe...@einstein.edu

>
> >This message is intended for the use of the person or entity to
> >which it is addressed and may contain information that is privileged
> >and confidential, the disclosure of which is governed by applicable
> >law.  If you are not the intended recipient, or the employee or
> >agent responsible to deliver it to the intended recipient, you are
> >hereby notified that any disclosure, copying, or distribution of
> >this information is strictly prohibited.  If you have received this
> >message by error, please notify the sender immediately to arrange
> >for return or destruction of these documents.
>
> >--
> >You received this message because you are subscribed to the Google
> >Groups "Fellowship for Accurate Courtroom Testimony (FACT)" group.
> >To post to this group, send email to
> >fellowship-for-accura...@googlegroups.com.
> >To unsubscribe from this group, send email to
> >fellowship-for-accurate-cou...@googlegroups.com.
> >For more options, visit this group at

> >http://groups.google.com/group/fellowship-for-accurate-courtroom-test....- Hide quoted text -

[dpriver]

I'm not so sure that jurors crying is a reflection of hard work as
much as it is a reflection of emotionalism, which is the main argument
against leaving major disputes in the hands of people who are prone to
emotional rather than logical thinking. If massive awards are being
made because the jury sympathizes with a badly damaged victim even
when the defendant did everything correctly, then this system does not
accomplish what it is supposed to: determining whether an injury is
the result of negligence. We all know that this is a major problem.
Health courts would simply be a way of addressing this problem. Are
there not already other forms of specialty courtsm, such as tax courts
or maritime courts? From what I'm told, this is perhaps the only area
of tort reform in which the Obama administration is interested.
David

> > >http://groups.google.com/group/fellowship-for-accurate-courtroom-test...Hide quoted text -
>
> > - Show quoted text -- Hide quoted text -

[Arnold Cohen]

Absolutely agree. That is the problem with juries, not the power of juries. We need to be judged based on science and care, not outcome and emotion
Arnie
-----Original Message-----
From: dpriver <dpriv...@gmail.com>
To: (FACT), Fellowship for Accurate Courtroom Testimony <fellowship-for-accura...@googlegroups.com>

Sent: 4/14/2011 2:27:14 PM
Subject: Re: Jury Trials

I'm not so sure that jurors crying is a reflection of hard work as

For more options, visit this group at http://groups.google.com/group/fellowship-for-accurate-courtroom-testimony?hl=en.

[Gen...@aol.com]

This has been an excellent "thread", and exactly the reason to keep this  site going!! Gene Saltzberg MD

[missde...@aol.com]

Regardless of any tort reform , we must continue.....follow the
science. Richard DePersio MD

[Mayer, Dan]

Hi all,

I basically agree with most of what has been said on this thread. However, I have just one question. Maybe I'm really off the wall (won't be the first time) but I was under the impression that only a tiny fraction (3% in one study) of medical malpractice cases ever even get to a jury. And of this tiny number, about 70 to 80% are won by the defendant and that for the most part, juries tears are reserved for the emotional impact of the case, which they can usually separate from the legal (medical?) facts. What I mean by this is that they are usually able to decide whether there was malpractice.

However, once they have made that determination, the 'tear factor' comes into play. This is when the jury must decide an award, which could become quite substantial if they feel that; a) an error was made (and they uneducated jurors were able to see the error based on clear and apparently truthful expert witness statements), b) the physician who made it didn't come forward and either apologize, agree to pay (settle) or both, and c) the plaintiff (patient or family) was egregiously injured. This would lead to large awards, perhaps larger than most 'cold hearted' professionals (judges, lawyers and physicians) would award if they were in judgment of the case.

I think that the whole system should be indicted. Let's get rid of trials and court proceedings in all but the cases where there are questions about punitive damages. Require panels to decide on the validity of med mal claims, have no fault med mal insurance (transparent through the levying of charges for a pool of this to patients - or doctors and other health care providers), and have REALLY objective experts (defined below) give their analysis of the cases. We can have two experts on each case and if they disagree significantly, have a third (a la Judge Thomas' court) break the tie or have the court help the two develop a consensus.

I think that we can define a really objective expert as the following:
1. doesn't know any of the parties
2. doesn't know which side of the case they are reviewing for (ideally, two physicians would review for the 'court' - then the two lawyers could flip a coin to see who works for who)
3. review only the minimal records that were available to the treating physician and that document their care
4. submit their opinions in writing, which can be peer reviewed by their professional organization

I'd love to hear the group's ideas about this radical a change.

Best wishes,

Dan


Dan Mayer, MD
Professor of Emergency Medicine
Albany Medical College
Mail Code 34
47 New Scotland Ave.
Albany, NY, 12208
phone: 518-262-6180
FAX: 518-262-5029
Mobile: 518-461-3191

-----------------------------------------
CONFIDENTIALITY NOTICE: This email and any attachments may contain
confidential information that is protected by law and is for the
sole use of the individuals or entities to which it is addressed.
If you are not the intended recipient, please notify the sender by
replying to this email and destroying all copies of the
communication and attachments. Further use, disclosure, copying,
distribution of, or reliance upon the contents of this email and
attachments is strictly prohibited. To contact Albany Medical
Center, or for a copy of our privacy practices, please visit us on
the Internet at www.amc.edu.

[John Schedler]

Methinks the good doctor is on to something.  JWS

[Arnold Cohen]

Even though only a "few" cases go to trial for the jury to react to, many cases are "settled" before going to trial because of the fear of "emotions" affecting the jury deliberations.
Lawyers are very wary of taking anything to court that is associated with a baby that has CP
In ob a bad baby trumps everything and we are very leery at taking any of these cases to trial because people are afraid to go to trial. Therefore the threat of a jury trial is actually worse than the small numbers of jury trials that occur.
This is why we need specialty courts that are based on science and evidence and not threatened by emotions

Arnie

Remember- Sign all Verbal orders in PeriBirth.
Also-Wash your hands

Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993

coh...@einstein.edu

[Arnold Cohen]

I will answer the questions and reiterate what I have said. Caps will not be acceptable. They have been reversed in states as being "unconstitutional" as far as my non-legal knowledge can understand so I have no hope for them.
I think the alternative to the jury trial is specialty courts and I hope there are pilots that will demonstrate whether what I hope is true or not.

[Judge Thomas]

Arnie,

Would you envision a jury in the specialty courts or simply a decision
by a judge? If it is only to be decided by a judge, I have great
concerns where that judge is not unbiased, either for or against the
doctor. I have presided over more than 20 medical malpractice cases
and in all but two the medical provider prevailed. In the two where
the plaintiff prevailed, I wanted to go after the medical provider
myself because of the incredibly sloppy treatment provided.

Neil

On Apr 15, 3:47 pm, "Arnold Cohen" <Cohe...@einstein.edu> wrote:
> Even though only a "few" cases go to trial for the jury to react to, many cases are "settled" before going to  trial because of the fear of "emotions" affecting the jury deliberations.
> Lawyers are very wary of taking anything to court that is associated with a baby that has CP
> In ob a bad baby trumps everything and we are very leery at taking any of these cases to trial because people are afraid to go to trial. Therefore the threat of a jury trial is actually worse than the small numbers of jury trials that occur.
> This is why we need specialty courts that are based on science and evidence and not threatened by emotions
>
> Arnie
>
> Remember- Sign all Verbal orders in PeriBirth.
> Also-Wash your hands
>
> Arnold W. Cohen, MD
> Chairman
> Department of Ob/Gyn
> Albert Einstein Medical Center
> 215-456-6993

> cohe...@einstein.edu

[Arnold Cohen]

Your experience is certainly better than my "vision" of what it could be.
In the 20 cases , don't you think a judge with unbiased expert opinions could have come to the same conclusions as the jury without going through the "trauma" of a trial?
If so, I would trust a judge to be less influenced by the demeanor and the presentation of the expert witness and the emotion of the case.
Maybe I am living in a "dream" world but that is how I would see it.

Arnie

Remember- Sign all Verbal orders in PeriBirth.
Also-Wash your hands

Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993

coh...@einstein.edu

[dpriver]

In addition to health courts, which I think has a lot going for it, I
believe we should also consider the idea of a "no-fault" system in
which there is no trial or fault finding at all. I'm told this is how
the system works in New Zealand and perhaps one or two other places.
The insurance involved covers anything considered to be a bad outcome
and is paid immediately based upon a scale of severity. While it would
appear likely that such a system would result in an increase in
claims, that would be more than offset by saving what is costs to find
fault. Our CMA years ago did research which showed that of the dollar
paid into the system in liability premiums, only 16 cents gets to an
injured patient. 84 cents gets consumed by the process of fault
finding. Can't help but believe we can assist those deserving of
compensation a lot faster with this sort of system.
David

On Apr 19, 7:45 am, "Arnold Cohen" <Cohe...@einstein.edu> wrote:
> Your experience is certainly better than my "vision" of what it could be.
> In the 20 cases , don't you think a judge with unbiased expert opinions could have come to the same conclusions as the jury without going through the "trauma" of a trial?
> If so, I would trust a judge to be less influenced by the demeanor and the presentation of the expert witness and the emotion of the case.
> Maybe I am living in a "dream" world but that is how I would see it.
>
> Arnie
>
> Remember- Sign all Verbal orders in PeriBirth.
> Also-Wash your hands
>
> Arnold W. Cohen, MD
> Chairman
> Department of Ob/Gyn
> Albert Einstein Medical Center
> 215-456-6993

> cohe...@einstein.edu

[Judge Thomas]

Dan,

Your suggested procedure is precisely how an independent expert
works. I have used an independent successfully in four cases, two of
which were medical malpractice cases, one of which was an FELA case
and another which was a civil murder infliction of emotional distress
case. The National Conference of State Trial Judges, a branch of the
Judicial Division of the American Bar Association, has prepared a
manual for the use of independent experts. I am unable to attach a
copy of the manual, but if anyone would like a copy, please let me
know and I will snail-mail it to you. It is a slender manual, but
there is not much law on this subject.

Neil

> ...
>
> read more »- Hide quoted text -

[Judge Thomas]

Arnie,

I would be curious to hear your definition of "trauma" associated with
a trial. If a judge were to try the case, it would have the same
procedure as a jury trial except that there would be no jury. I hope
that everyone understands that in a jury trial the judge sits as the
13th juror to agree or not to agree with the jury verdict.

Neil

On Apr 19, 10:45 am, "Arnold Cohen" <Cohe...@einstein.edu> wrote:
> Your experience is certainly better than my "vision" of what it could be.
> In the 20 cases , don't you think a judge with unbiased expert opinions could have come to the same conclusions as the jury without going through the "trauma" of a trial?
> If so, I would trust a judge to be less influenced by the demeanor and the presentation of the expert witness and the emotion of the case.
> Maybe I am living in a "dream" world but that is how I would see it.
>
> Arnie
>
> Remember- Sign all Verbal orders in PeriBirth.
> Also-Wash your hands
>
> Arnold W. Cohen, MD
> Chairman
> Department of Ob/Gyn
> Albert Einstein Medical Center
> 215-456-6993

> cohe...@einstein.edu

[Arnold Cohen]

I believe that non-physicians (not those on this listserve because all of you are interested in participating in this conversation so you already are different than the rest of the world) don't understand what happens to a physician when he/she is sued. The issue of what did I do wrong, could I have done better, did I really hurt this patient, am I a good doctor, should I be practicing medicine etc. Your entire self worth and reason for being come into question. Then you sit in front of jury selection where the judge says "you are all here to determine if this doctor did something wrong to hurt this person". And then add upon that the very real issue that even if you didn't do anything wrong, there is someone saying you did something wrong and if the jury believes that witness more than your witness, you are found guilty even though you are not.

That is TRAUMA

Arnie

Remember- Sign all Verbal orders in PeriBirth.
Also-Wash your hands

Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993

coh...@einstein.edu

>>> Judge Thomas <ne...@hamiltontn.gov> 4/19/2011 2:12 PM >>>
Arnie,

Neil

--

You received this message because you are subscribed to the Google Groups "Fellowship for Accurate Courtroom Testimony (FACT)" group.
To post to this group, send email to fellowship-for-accura...@googlegroups.com.
To unsubscribe from this group, send email to fellowship-for-accurate-cou...@googlegroups.com.
For more options, visit this group at http://groups.google.com/group/fellowship-for-accurate-courtroom-testimony?hl=en.

[Dr...@aol.com]

Agree Dr. Cohen - a jury trial, when oneself is the accused, is TRAUMATIC.

 

Bob Dimick, MD

Nashville, TN

[John Schedler]

I've spent 30+ years defending Drs & other professionals.  What Dr. Cohen says is true -- in spades.  Other professionals (lawyers, architects, etc.) do not have the same intense emotional reaction. Combine that with a ruthless exploitation of hindsight bias, it it gets ugly.

JWS

[Mayer, Dan]

Hi Neil,

I would love to have a copy of the manual. It sounds like a really progressive action.

My home address is;

1848 Union Street
Niskayuna, NY 12309

Best wishes,

Dan

PS: You might be interested in a new book on health care improvement/reform by Gerd Gigerenzer and JA Muir Gray called "Better Doctors, Better Patients, Better Decisions".


________________________________________
From: fellowship-for-accura...@googlegroups.com [fellowship-for-accura...@googlegroups.com] On Behalf Of Judge Thomas [ne...@hamiltontn.gov]
Sent: Tuesday, April 19, 2011 2:07 PM
To: Fellowship for Accurate Courtroom Testimony (FACT)
Subject: Re: Jury Trials